People v. Goliday

• Citation: 505 P.2d 537,106 Cal.Rptr. 113,8 Cal.3d 771
• Decision Date: 31 January 1973
• Docket Number: Cr. 16369
• Court: United States State Supreme Court (California)
• Parties: , 505 P.2d 537 The PEOPLE, Plaintiff and Respondent, v. Albert GOLIDAY, Defendant and Appellant. In Bank

Page 113

106 Cal.Rptr. 113

8 Cal.3d 771, 505 P.2d 537

The PEOPLE, Plaintiff and Respondent, v. Albert GOLIDAY, Defendant and Appellant.

Cr. 16369.

Supreme Court of California,

In Bank.

Jan. 31, 1973.

James S. Fitzpatrick, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Charles P. Just and Frank A. Iwama, Deputy Attys. Gen., for plaintiff and respondent.

TOBRINER, Justice.

We undertake here to examine and elaborate on the principles first announced in Eleazer v. Superior Court (1970) 1 Cal.3d 847, 83 Cal.Rptr. 586, 464 P.2d 42. Defendant Goliday appeals from convictions in the Superior Court of Los Angeles for two counts each of unlawful sale and possession for sale of secobarbital and amphetamine tablets under Health and Safety Code sections 11912 and 11911. Both at the preliminary hearing and at trial, Goli day's counsel sought information which would help him locate two informer-eyewitnesses to the alleged sale who were neither paid nor regular agents of the police. The prosecution provided only the first names of the informers. For the reasons set forth below, we reverse the convictions for sale of restricted drugs under Health and Safety Code section 11912, and affirm the convictions for the two counts of possession for sale under Health and Safety Code section 11911. We hold that when a person who actively cooperates with the police becomes and eyewitness to a narcotics violation the police and prosecution must 'undertake reasonable efforts in good faith to locate the informer so that either party or the court itself . . . could, if it so desired, subpena him as a witness.' (Eleazer v. Superior Court, supra, 1 Cal.3d at page 853, 83 Cal.Rptr. at page 590, 464 P.2d at page 46.)

I. The Facts

We first review the facts and testimony presented to the superior court. On July 19, 1970, Officer Nettles of the Los Angeles Police Department Narcotics Division received a telephone call from a female, identified only as 'Frankie,' who volunteered information concerning a narcotics dealer. The next day Officer Nettles, dressed in civilian clothes, met 'Frankie' and a companion named 'Sue'; this trio proceeded to the defendant's apartment for the purpose of purchasing restricted drugs; they were admitted inside while other officers waited undercover nearby. Five persons, including the defendant Goliday, were present in the apartment, in addition to the two informers and Officer Nettles. ¹

What happened next became an issue critical to the charges of sale and possession for sale of narcotics. The prosecution offered only the testimony of Officer Nettles; he testified that defendant Goliday removed a paper sack from a hall closet, counted out 37 amphetamine and secobarbital capsules, handed them to Officer Nettles, and accepted $10 in payment. Officer Nettles, 'Frankie,' and 'Sue' then left defendant's apartment.

Five minutes later Officer Johnson and other officers announced their presence, entered the apartment, and arrested the defendant. According to Officer Johnson's testimony, the police discovered several caches inside the apartment containing some 800 narcotics tablets.

Goliday pled not guilty, and, at the preliminary hearing on October 8, 1970, his defense counsel asked Officer Nettles on cross-examination how counsel could contact 'Frankie' and 'Sue' for possible use as defense witnesses. Officer Nettles replied, 'I don't know.' He testified that he did not know the last name of either of the two informers, that the police possessed no other information about the informers, and that he deliberately refrained from obtaining such information to prevent 'Frankie' and 'Sue' from being called as witnesses. ² He also testified that to his knowledge no other contacts occurred between the police and the informants before or after the incidents described above, and that neither 'Frankie' nor 'Sue' received compensation.

Five months later, at the trial on March 4, 1971, additional information concerning the informers came to light. After the trial judge ordered disclosure of 'all information that the police have concerning anyone who may be a witness,' the prosecution revealed that Officer Nettles had 'discovered' a telephone number supplied by one of the two informers. According to Officer Nettles he found that when he dialed the number two weeks before the trial, the phone had been disconnected; he was unable to recall the date on which he obtained the number even though he earlier testified that the only police contact with 'Sue' and 'Frankie' occurred on July 19 and July 20, 1970.

Goliday's counsel then moved for dismissal, claiming that the prosecution's failure to supply information which might enable the defense to contact material witness informants had denied him due process of law. ³ The trial judge held that Eleazer v. Superior Court, supra, 1 Cal.3d 847, 83 Cal.Rptr. 586, 464 P.2d 42, does not require the police to undertake reasonable efforts to obtain information about material witnesses who are neither regular nor paid informants.

II. The convictions under Health and Safety Code section 11912 must be reversed because the prosecution and police failed in their duty both to obtain and to disclose information by which eyewitness informants could be located.

We first consider the defendant's convictions under Health and Safety Code section 11912 for two counts of sale of restricted drugs.

The common law informer's privilege ⁴--the privilege against disclosure of the identity of persons who supply the government with information concerning the commission of crimes--now lies embedded in Evidence Code section 1041. ⁵ As we said in People v. Garcia (1967) 67 Cal.2d 830, 64 Cal.Rptr. 110, 434 P.2d 366, however, 'the official identity-of-informant privilege must yield when it is shown that the informant whose identity is sought is a material witness for the defense and non-disclosure Would deprive the defendant of a fair trial. In such cases, it is clear that the 'balance' is struck in favor of the defendant, and disclosure must be ordered upon pain of dismissal. . . . (O)nly after it (is) first determined that the informant is not a naterial witness to the guilt or innocence of the assused' can disclosure be denied. (Emphasis in the original.) (67 Cal.2d [8 Cal.3d 778] at pp. 842--843, 64 Cal.Rptr. at p. 118, 434 P.2d at p. 374; Honore v. Superior Court (1969) 70 Cal.2d 162, 74 Cal.Rptr. 233, 449 P.2d 169.) ⁶

Although originally this duty to disclose the identity of a material witness required only that the prosecution reveal information actually in its possession, in Eleazer v. Superior Court, supra, 1 Cal.3d 847, 83 Cal.Rptr. 586, 464 P.2d 42, we extended the prosecution's obligation and required, in addition, reasonable steps To locate or obtain information about such informants. If 'though police tactics or happenstance (an) informer becomes a material witness, the police should make such inquiries and arrangements as are reasonably necessary to enable the prosecution and defense to locate him. . . .' (1 Cal.3d at p. 852, 83 Cal.Rptr. at p. 589, 464 P.2d at p. 45.) We recognized the futility of a rule requiring disclosure of the information which the police know about a material witness informer without a further requirement that the police make efforts to obtain information useful in locating the informer as well. We noted, however, that '(d)ue process requires only that the police and the district attorney undertake Reasonable efforts in good faith to Locate the informer so that either party or the ocurt itself (see Evid.Code § 775) could, if it so desired, subpena him as a witness.' (Italics in the original.) (1 Cal.3d at p. 853, 83 Cal.Rptr. at p. 590, 464 P.2d at p. 46.)

A. The police and prosecution failed to undertake reasonable efforts to obtain information by which the defense could locate the two eyewitnesses.

Applying the principles set forth above to the instant case, we note that both 'Frankie' and 'Sue' were clearly 'material witness(es) on the issue of guilt' since they were eyewitness participants to the alleged sale. (People v. Garcia, supra, 67 Cal.2d at p. 837, 64 Cal.Rptr. at p. 116, 434 P.2d at p. 372; People v. Durazo (1959) 52 Cal.2d 354, 356, 340 P.2d 594; People v. Williams (1958) 51 Cal.2d 355, 359, 333 P.2d 19.) We need not speculate about what 'Frankie' and 'Sue' might have revealed as witnesses; an accused need show only a possibility that a material witness might testify favorably on his behalf; a defendant 'need not prove conclusively before disclosure the very fact (he) seek(s) to obtain through disclosure.' (People v. Perez (1965) 62 Cal.2d 769, 773--774, 44 Cal.Rptr. 326, 328, 401 P.2d 934, 936; Price v. Superior Court (1970) 1 Cal.3d 836, 843, 83 Cal.Rptr. 369, 463 P.2d 721.) Here, for example, the two informers might have supported the defendant's plea of innocence to the sale counts by testifying that the defendant declined to sell restricted drugs to Officer Nettles. The prosecution, therefore, owned a duty to disclose the 'identity' of the two eyewitness informers at the preliminary hearing as well as at trial. (Mitchell v. Superior Court (1958) 50 Cal.2d 827, 829, 330 P.2d 48.)

The prosecution in the present case conceded its duty to give to the defense all the information that it had about the informants; the question presented to us turns on whether the procecution can avoid the Additional duty to obtain information, which we announced in Eleazer v. Superior Court, supra, 1 Cal.3d 847, 83 Cal.Rptr. 586, 464 P.2d 42. The Attorney General contends that the Eleazer rule applies only in cases involving a regular or compensated police informant. He emphasizes the following statement taken from a footnote of our Eleazer opinion: 'In imposing a duty to undertake reasonable efforts to locate an informer we mean by an 'informer' a person who...